187 F.3d 282 (2nd Cir.

1999)

UNITED STATES OF AMERICA and STATE OF

CONNECTICUT, as parens patriae, Plaintiffs-CounterDefendants-Appellees,
v.
STANLEY G. SCOTT, Defendant-Appellant,
CARMEN E.F. VAZQUEZ, Defendant-Counter-Claimant,
BOBBY J. RILEY, Defendant,
CONNECTICUT WOMEN'S EDUCATION AND LEGAL
FUND, Amicus Curiae,
SUMMIT WOMEN'S CENTER, Movant,
HARTFORD COURANT COMPANY, INC. and MARK
PAZNIOKAS, Interested Parties.
Docket No. 98-6087
August Term, 1998

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT
Argued Feb. 22, 1999
Decided Aug. 4, 1999

Appeal from order of the United States District Court for the District of
Connecticut (Alan H. Nevas, Judge) which, upon a finding that plaintiff
repeatedly violated a previous injunction, expanded "buffer zones" around
clinic entrance and around persons who indicated a desire not to receive
abortion "counseling" or literature from plaintiff.
Affirmed.
Judge Leval dissenting in part.
STANLEY G. SCOTT, Fairfield, CT, Pro Se.
RICHARD BLUMENTHAL, Attorney General for the State of
Connecticut, Hartford, CT (Jennifer C. Jaff, Assistant Attorney General,
on the brief), for Plaintiff-Counter-Defendant-Appellee State of

Connecticut.
SHARON E. JAFFE, Assistant United States Attorney, Bridgeport, CT
(Stephen C. Robinson, United States Attorney for the District of
Connecticut) for Plaintiff-Counter-Defendant-Appellee United States of
America.
LUCINDA M. FINLEY, Buffalo, NY, for Amicus Curiae Connecticut
Women's Education and Legal Fund.
Before: LEVAL, POOLER, and HEANEY* . Circuit Judges.
POOLER, Circuit Judge:

The district court found that defendant Stanley G. Scott's actions during antiabortion protests and demonstrations outside Summit Women's Center
("Summit") in Bridgeport, Connecticut, violated the Freedom of Access to
Clinic Entrances Act ("FACE"), 18 U.S.C. 248. As a result of his violations,
the court enjoined Scott from demonstrating within fourteen feet of Summit's
entrance and from positioning himself within five feet of persons or vehicles in
the vicinity of Summit once an individual indicated that he or she did not wish
to talk with or receive literature from Scott. After he repeatedly violated the
injunction, the court held Scott in contempt and expanded the injunction. Scott
challenges the expanded injunction as an undue burden on his speech rights.
We hold that given Scott's record of harassing and abusive conduct, his
repeated violations of the district court's orders, and the very real safety
concerns his actions present, the expanded injunction did not violate his First
Amendment rights. We therefore affirm.

BACKGROUND
2

In June 1995, the United States of America and the State of Connecticut
(collectively, "the Government") brought this action against Scott and two other
anti-abortion protestors alleging violations of FACE1 at Summit, a statelicensed clinic providing pregnancy testing, abortion services, and other
gynecological and reproductive health services in Bridgeport, Connecticut. See
United States v. Scott, 958 F. Supp. 761, 764-65 (D. Conn. 1997). The
Government alleged that since July or August 1994, Scott repeatedly had
violated FACE by the use of force, the threat of force, and physical obstruction
outside Summit and was likely to continue this conduct in the future.

After a nine-day bench trial, the district court issued findings of fact and

conclusions of law. We summarize those findings that are relevant to this

appeal. Scott, who describes his anti-abortion activities as part of a "holy war,"
has demonstrated at Summit since 1975 and regularly protests in front of the
clinic and along the streets and parking lots in the surrounding area. Id. at 767.
While demonstrating, Scott often carries a sign, approximately 2" feet by 1"
feet, which contains an enlarged reprint of a July 1993 newspaper article about
a woman who died from complications arising from an abortion. See id. He has
used this sign as a "battering ram" to block Summit volunteers who escort
clients into the clinic from walking with clients; he also has on occasion used a
sound amplification device to assist him in broadcasting his message in front of
the clinic. See id. at 767-68. "Scott regularly obstructs free ingress to, and
egress from Summit by stepping in front of escorts; using his sign to prevent
escorts from walking past him; positioning himself next to patients'
automobiles so that they have difficulty opening their car doors; and following
patients to and from the Summit entrance after they have indicated that they do
not wish to talk with him." Id. Scott runs at patients and yells at them, often
provoking angry and heated responses that on numerous occasions have
escalated into physical confrontations. See id. at 768-69. By his own admission,
patients and their companions have hit, slapped, and maced Scott in response to
his attempts to persuade women not to have abortions. See id. at 769. Scott
repeatedly pushes escorts and threatens Summit personnel, on one occasion
telling a Summit security guard, "[a] bullet could come your way today." See
id. at 770.
4

The district court also found that on as many as twenty occasions, Bridgeport
police officers restrained Scott and warned him not to block patients' passage to
the clinic; on forty or fifty occasions officers warned Scott not to stand in front
of the clinic entrance; and on approximately thirty occasions, officers warned
Scott about the volume of his voice, which could be heard throughout the
clinic. See id. at 769. From 1988 through 1996, Scott was arrested fourteen
times for, among other things, breach of the peace, disorderly conduct,
harassment, and third-degree assault. See id. at 768.

In its conclusions of law, the court found that Scott violated FACE by the use
of force on numerous occasions and that he "repeatedly crossed the line from
protected First Amendment activity to unprotected physical contact." Id. at 775.
The court also concluded that Scott violated FACE on multiple occasions "by
using physical obstruction to intentionally injure, intimidate or interfere with, or
attempt to injure, intimidate or interfere with, Summit patients, escorts, and
staff because they were obtaining or providing reproductive health services"
and on at least two occasions by using the threat of force. Id. at 775-76.

Because the court concluded that there was a substantial likelihood that Scott
would continue to violate FACE, it issued an injunction that, among other
things, prevented Scott from "[c]oming within fourteen feet (14') of any
entrance to Summit, or being present in that portion of the street directly in
front of Summit which is designated as a no-parking zone." Id. at 782, 784. The
court also enjoined Scott from "[c]oming within five feet (5') of any person
who is or has been obtaining or providing reproductive health services at
Summit" or within five feet of an automobile occupied by any such person
"once that person indicates verbally that he or she does not want to accept
literature or listen to any communication or counseling."2 Id. The court
specified that for purposes of the injunction, clinic escorts "provide[d]
reproductive health services." Id.

Scott filed no appeal from the district court's order, but he did file motions to
alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) and District of
Connecticut Local R. 9(e). The court denied Scott's motions. See United States
v. Scott, 975 F. Supp. 428, 434 (D. Conn. 1997). Again, Scott took no appeal.

Thereafter, in June 1997, the Government moved by order to show cause to

hold Scott in civil contempt for violating the injunction. After a hearing, the
district court concluded that Scott had "repeatedly violated the injunction" by
yelling and shouting so that he could be heard within Summit, standing within
the fourteen-foot buffer zone around the clinic entrance, and failing to retreat
five feet upon the request of patients seeking access to the clinic. See United
States v. Scott, No. 3:95CV1216 (AHN), 1997 WL 889513, at *1 (D. Conn.
Aug. 1, 1997). The court fined Scott $200 but offered him the opportunity to
purge himself of the contempt violation by complying with the injunction for a
period of ninety days. See id. at *2. Upon the Government's motion, the court
held another hearing and determined that Scott had continued to violate the
injunction and thus had failed to purge himself of contempt. See United States
v. Scott, 3:95cv1216(AHN), slip op. at 2 (D. Conn. Nov. 12, 1997).

The Government sought another finding of civil contempt in February 1998,

alleging that Scott had violated the injunction on multiple occasions by yelling
loudly enough to be heard inside the clinic, failing to retreat five feet when
asked to do so, preventing people from exiting their vehicles, and coming
within fourteen feet of the clinic entrance. After a two-day hearing, the district
court found that on thirty-one occasions Scott yelled loudly enough to be heard
inside the clinic, and that on more than one occasion Scott violated the
injunction by failing to retreat five feet from a person or vehicle after being
asked and failing to observe the fourteen-foot buffer zone around the clinic

entrance. See United States v. Scott, No. 3:95CV1216 (AHN), 1998 WL

241755, at *1-2 (D. Conn. March 16, 1998). The court also found that "[o]n at
least one occasion, Scott positioned himself so close to an individual's car door
that he made it difficult for her to exit her vehicle." Id. at *2. Based upon these
findings, the district court held Scott in contempt. See id. In light of Scott's
repeated violations of the injunction and "continued refusal to obey this order,
despite previous contempt findings and fines levied by the court," the court
modified the injunction by (1) expanding the fourteen-foot buffer zone around
Summit's entrance to 28 feet; and (2) expanding from five feet to eight feet the
buffer zone around persons and their vehicle after they have verbally indicated
that they do not want to receive literature or "counseling." See id. The court
also prohibited Scott from being present anywhere on the street in front of
Summit unless he was crossing the street. See id. In so modifying the
injunction, Judge Nevas noted his concern "not only for the safety of those
entering and leaving the clinic, but also for Scott's own safety," and observed
that "[a]ccording to the videotape evidence, one individual attempted to hit
Scott with her car after he refused to abide by her request to move back and
another individual accompanying a woman into the clinic pushed Scott out of
his way as he was walking [toward] the clinic." Id.3
10

Scott appeals from the district court's March 16, 1998, order expanding the
buffer zones around the clinic entrance ("fixed buffer zone") and around
persons and vehicles ("floating buffer zone").

DISCUSSION
11

Although Scott appealed from the March 16, 1998, order as a whole, he makes
no arguments against the district court's expansion of the fixed buffer zone or
its prohibition against his presence in the street in front of Summit. Scott's
principal contention on appeal is that the eight-foot "floating buffer zone"
around persons and vehicles in the vicinity of Summit violates the First
Amendment because it makes "compliance impossible without withdrawing to
such a distance as to make even the most peaceful and quiet communication
impossible."4

12

In assessing the constitutionality of the expanded floating buffer zone, we must

first determine whether it is content-based or content-neutral, that is, whether
the injunction regulates expression "without reference to the content of the
regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(internal quotation marks and citation omitted). The relevant consideration is
whether the justifications underlying the issuance of the injunction refer to the
content of the restricted expression. See id. (examining content neutrality of

local ordinance and concluding that "[a] regulation that serves purposes
unrelated to the content of the expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others"). Contrary to
Scott's contentions, the Supreme Court has rejected the argument that an
injunction is content-based simply because it restricts only the speech of antiabortion protestors. See Madsen v. Women's Health Center, Inc., 512 U.S. 753,
762-63 (1994) (holding that the fact that injunction at issue did not restrict the
expression of those demonstrating in favor of abortion rights was "justly
attributable to the lack of any similar demonstrations by those in favor of
abortion [rights]" and noting that "the state court imposed restrictions on
petitioners incidental to their antiabortion message because they repeatedly
violated the court's original order"). We conclude that the purpose of the
modified injunction at issue on this appeal was content neutral: the district
court expanded the injunction in response to Scott's repeated disregard of the
court's prior orders and did so out of a concern "not only for the safety of those
entering and leaving the clinic, but also for Scott's own safety." United States v.
Scott, 1998 WL 241755, at *2.
13

In evaluating the constitutionality of a content-neutral injunction, we apply the

test that the Supreme Court articulated in Madsen: "whether the challenged
provisions of the injunction burden no more speech than necessary to serve a
significant government interest." Madsen, 512 U.S. at 765. The Government
asserts interests in protecting a woman's freedom to seek pregnancy-related
services, ensuring public safety and order, promoting the free flow of traffic,
and providing a calm and secure environment in which to seek health-related
services. The Supreme Court has recognized that "the combination of these
interests [is] 'quite sufficient to justify an appropriately tailored injunction.'" See
Schenck v. Pro-Choice Network of Western New York, 117 S.Ct. 855, 864
(1997) (quoting Madsen, 512 U.S. at 768). The central question of this case is
thus whether the challenged injunction burdens more speech than is necessary.

14

In Schenck, the Supreme Court assessed the constitutionality of an injunction

that, among other things, created "floating buffer zones" around people entering
and leaving certain reproductive health care clinics. See id. at 866-68.
Specifically, the injunction prevented the defendant protestors from
demonstrating or "counseling" within fifteen feet of any person entering or
leaving the clinic. See id. at 862 and 861-62 n. 3. As an exception to this
provision, the injunction allowed two sidewalk "counselors" to have "a
conversation of a nonthreatening nature" with individuals entering or leaving
the clinic. See id. at 861 n.3. However, if the individuals indicated that they did
not want to receive the "counseling," the injunction required the "counselors" to
"cease and desist" from their "counseling" activities and retreat outside the

fifteen-foot zone. See id. at 862.

15

The Court observed that "[l]eafletting and commenting on matters of public

concern are classic forms of speech that lie at the heart of the First
Amendment, and speech in public areas is at its most protected on public
sidewalks, a prototypical example of a traditional public forum." Id. at 867. The
Court concluded that the particular injunction posed practical problems for
persons attempting to comply with its terms, in part because the sidewalk at one
of the clinics was only seventeen feet wide, and protestors might be "pushed
into the street," and in part due to the practical difficulties associated with
maintaining a fifteen-foot buffer around several individuals who might move at
once in different directions. See id. at 867. The Court stated that "[t]his lack of
certainty leads to a substantial risk that much more speech will be burdened
than the injunction by its terms prohibits" because a protestor wishing to speak
to one individual from the permitted distance of fifteen feet might be forced to
stand further away due to the proximity of another individual. See id. Noting
that "there may well be other ways to both effect . . . separation and yet provide
certainty (so that speech protected by the injunction's terms is not burdened),"
the Court held, based on the record before it, that it could not sustain the
floating bubble. See id. at 867-68.

16

Despite its conclusion that the challenged injunction failed on the facts of the
particular case before it, the Court recognized that in certain situations, "a
record of abusive conduct makes a prohibition on classic speech in limited parts
of a public sidewalk permissible." Id. at 867. The Court expressly refused to
strike down all "floating buffer zones" and left open the question "whether the
governmental interests involved would ever justify some sort of zone of
separation between individuals entering the clinics and protestors, measured by
the distance between the two." Id. We conclude that the so-called "floating
buffer zone" in this case is distinguishable from the one the Supreme Court
struck down in Schenck and that Scott's record of harassing and often
physically abusive conduct justifies the narrow zone of separation the district
court imposed on him.

17

The "floating buffer zone" in this case differs from the one in Schenck in two
notable respects. First, the zone of separation imposed on Scott is smaller. The
zone in Schenck, which required protestors to stay fifteen feet away from
persons entering or leaving the clinics, posed potential safety issues because the
sidewalk in front of the clinic was only seventeen feet wide and protestors
might be "pushed into the street" in their efforts to comply with the injunction.
Schenck, 117 S.Ct. at 867. The size of the fifteen-foot buffer also prevented the
protestors from coming within a normal conversational distance of their

intended audience. By contrast, the zone of separation that Scott must maintain
is only eight feet, and the sidewalk in front of Summit is thirteen and one-half
feet wide. See United States v. Scott, 958 F. Supp. at 765. More importantly,
the buffer zone in this case is triggered only if a Summit client indicates that
she does not want to receive literature or "counseling" from Scott. Until that
time, Scott is free to come as close as he wishes to persons entering or leaving
the clinic to communicate his message. Schenck recognized that a "cease and
desist" limitation like the one imposed in this case was an effort "to enhance
[protestors'] speech rights and . . . must be assessed in that light." Schenck, 117
S.Ct. at 870 (internal quotation omitted). Scott's record of harassing and abusive
conduct outside Summit justifies the zone of separation the district court
imposed. The district court has twice found Scott in contempt of the original
injunction. See Scott, 1997 WL 889513; Scott, 1998 WL 241755 at *1. The
court found that Scott had on several occasions failed to retreat five feet from a
person or vehicle when asked to do so, and that on at least one occasion Scott
positioned himself so close to an individual's car door that he made it difficult
for her to exit the vehicle. See Scott, 1998 WL 241755, at *2. The record
contains evidence of instances of physical confrontations that threaten not just
the safety of clinic escorts and clients, but Scott's safety as well. See id. Scott's
repeated and continued violations of the court's orders and the very real safety
issues these violations present justify the 8-foot zone of separation the district
court imposed. See Schenck, 117 S.Ct. at 867, 870 (conditions imposed on
protestors' speech rights were "the result of their own previous harassment and
intimidation of patients"). The dissent criticizes the floating buffer as unduly
restrictive of Scott's First Amendment rights and suggests possible ways to alter
the injunction to afford Scott greater opportunities to communicate his message.
However, Scott is not a law-abiding protestor to whom the benefit of all doubt
and a full range of speech rights is to be accorded; rather, he is a serial violator
of injunctions that the district court successively fashioned in an attempt to
secure for the public safe access to reproductive health care facilities. His
"record of abusive conduct" more than justifies the challenged restrictions on
his speech. See Schenck, 117 S.Ct. at 867. The dissent's proposal to divide the
sidewalk to create "fixed lanes," while creative, is not a viable alternative to the
buffer zone at issue because it does not adequately protect the government's
substantial interests. Under the proposed scenario, it is possible, indeed
probable, that Scott could come within inches of clients and clinic escorts,
whom the record shows he has repeatedly harassed.5
CONCLUSION
18

In sum, the district court carefully tailored the expanded injunction to address
the particular facts of this case, striking a balance between important

government interests on the one hand and the speech rights of a protestor who
has repeatedly disregarded the court's earlier injunctions on the other.6 For this
reason, the challenged provision does not burden more speech than is necessary
to serve the stated government interest. We therefore affirm the district court's
order.

NOTES:
*

The Honorable Gerald W. Heaney, Senior Circuit Judge, United States Court of
Appeals for the Eighth Circuit, sitting by designation.

Pursuant to FACE, any person who by force or threat of force or by physical

obstruction, intentionally injures, intimidates or interferes with or attempts to
injure, intimidate or interfere with any person because that person is or has
been, or in order to intimidate such person or any other person or any class of
persons from, obtaining or providing reproductive health services may be
enjoined from such conduct, imprisoned, and/or ordered to pay compensatory
relief or a criminal penalty. See 18 U.S.C. 248(a)-(c).

"Sidewalk counseling" is a term abortion protestors use to describe the

activities of persons who stand outside clinics that provide reproductive health
services and offer pro-life literature, factual information, and personal opinions
about abortion to persons who enter the clinics. See United States v. Scott, 958
F. Supp. at 765. The ultimate purpose of "sidewalk counseling" is to dissuade
women from having abortions. See id.

On June 15, 1998, in response to plaintiffs' application, Scott appeared to show

cause why he should not be held in contempt of the expanded injunction. See
United States v. Scott, 3:95CV1216, 1998 WL 386483, *2 (D. Conn. June 25,
1998). The court concluded that Scott had violated the injunction and again
held him in contempt. See id. at *3. However, the court refused to grant
plaintiffs' request to further modify the injunction to prevent Scott from coming
within 56 feet of the clinic so that, in order to protest, he would have to stand
on the opposite side of the street from the entrance. See id. at *3-4. The court
noted that although Scott was in contempt of the provision of the injunction
that prevented him from yelling loudly in front of the clinic, he appeared to be
complying with the other portions of the injunction. See id. at *3 (noting that
"without the benefit of a tape measure, it is impossible to know if he always
steps back eight feet when a patient verbally refuses his counseling or literature,
but the videotape evidence shows that he generally backs off when a patient
tells him to do so") (footnote omitted).

Scott also argues that the district court erred by continuing certain provisions of
the original injunction. However, challenges to (1) the court's initial finding
that Scott violated FACE or (2) the initial injunction are not before the court
because Scott did not timely appeal from the court's April 2, 1997, order. See
United States v. Rylander, 460 U.S. 752, 756 (1983) ("a contempt proceeding
does not open to reconsideration the legal or factual basis of the order alleged to
have been disobeyed and thus become a retrial of the original controversy")
(quoting Maggio v. Zeitz, 333 U.S. 56, 59 (1948)); see also United States v.
Terry, 17 F.3d 575, 579 (2d Cir. 1994) (same). Although "[a]n exception to the
prohibition against collateral attack exists where the injunction is transparently
invalid, the preliminary injunction in this case was not so far in excess of the
court's authority that it had no right to expect compliance." Id. (internal
quotation marks and citation omitted). Moreover, the "transparently invalid"
exception requires as a precondition to its application "a showing that the party
made a good faith effort to seek emergency relief from the appellate court." Id.
(internal quotation marks and citation omitted). Scott has not satisfied this
condition.

Moreover, the dissent's concern that Scott's speech will be squelched

immediately by clients and escorts invoking the "cease and desist" provision by
indicating their desire to be left alone is purely speculative.

Although not dispositive of the issue, we note that the district court has
subsequently observed that Scott has complied with the expanded buffer zones
around the clinic entrance, persons, and vehicles. See 1998 WL 386483, at *3.

19

LEVAL, Circuit Judge, dissenting in part from the majority opinion:

20

I respectfully dissent from the portion of the judgment affirming the expansion
of the "floating buffer zone."

21

In Schenck v. Pro-Choice Network of Western New York, 117 S. Ct. 855

(1997), the Supreme Court struck down a floating buffer zone that prohibited
abortion protestors from coming within 15 feet of persons entering or leaving
medical clinics. See id. at 866-67. The Court found that the floating buffer
zones "burden more speech than is necessary to serve the relevant
governmental interests." Id. at 867. Among the problems of the Schenck
injunction were the following:

22

* On a public sidewalk, a "prototypical example of a traditional public forum,"

the 15-foot width of the buffer zone made it impossible for a protestor to talk to
a clinic client or escort from a "normal conversational distance." Id.

23

* Indeed, because the protestor was required to maintain a 15-foot separation

from escorts as well as clients, escorts could position themselves so as to push
the protestor nearly 30 feet from clients.

24

* The 15-foot buffer also prevented the protestor from offering leaflets to
persons entering or leaving the clinic. The Court stated that leafleting on a
public street is a "classic form[] of speech that lie[s] at the heart of the First
Amendment." Id.

25

* Given that the sidewalk was 17-feet wide, if the person entering or leaving
the clinic walked near the middle of the sidewalk, the protestor, required to
remain 15 feet away, would not be able to walk alongside the person without
being "pushed into the street." Id.

26

* Because there could be several buffer zones on the sidewalk at the same time
moving independently of each other (one buffer for each person entering or
leaving the clinic), a protestor concentrating on communicating with one person
would be at substantial risk of violating another person's buffer zone. For
example, if a protestor were talking with a client who was walking toward the
clinic while an escort emerged from the clinic and walked from the clinic
toward the protestor, the protestor who continued talking to the client might
soon find himself in violation of the buffer surrounding the escort. Similarly,
because a protestor might be forced by the narrowness of the sidewalk to walk
backwards toward the clinic ahead of the client, the protestor might back into
the buffer of another unseen client emerging from the clinic. As a result of the
difficulties created by multiple buffers, the Supreme Court observed, "it would
be quite difficult for a protestor who wishe[d] to engage in peaceful expressive
activities to know how to remain in compliance with the injunction." Id.

27

* Because the floating buffer zones constantly move and the distance defining
the buffer needs to be estimated, the zones were likely "quite difficult for a
District Court to enforce." Id. at 867 n.9.

28

The Court concluded that there were other ways to protect the interests of the
users of the clinic that would avoid the problems and excesses of the floating
buffer zone. See id. at 867-68.

29

Many of the problems of the Schenck injunction are also present under this
injunction, although in lesser degree.

30

* The sidewalk in front of the clinic is 13" feet wide. Scott must maintain a

distance of 8 feet from the clients and escorts. He is forbidden to enter the
street. If the client walks down the middle of the sidewalk, Scott cannot walk
alongside her on the sidewalk, and if he enters the street, he violates the
injunction. Scott must therefore either address the client from 8 feet behind her,
a particularly unsatisfactory form of communication, or must place himself
ahead of her, walking backwards to face the client as she advances.
31

* Because there may be several simultaneous buffer zones moving

independently of each as different individuals approach and leave the clinic,
Scott risks to violate the injunction while attempting to engage in protected
communication. If he is walking and talking with one patient while another
patient approaches from the opposite direction, Scott must either retreat or
violate the injunction. In fact, if Scott is on the sidewalk between two protected
persons who are approaching one another, there is no way he can avoid
violation except by crossing to the opposite side of the street. As a result, Scott
may well have serious difficulty "engag[ing] in peaceful expressive activities
[and] remain[ing] in compliance with the injunction." Id. at 867. 1

32

* Because Scott must maintain an 8-foot distance from escorts as well as the
clients, an escort can place herself between him and the client, effectively
pushing him to a distance considerably greater than 8 feet from the client.

33

* The width of the separation between Scott and the client, especially as it can
be increased by escorts placing themselves between the two, can prevent Scott
from handing the client leaflets and from speaking to her in a normal
conversational tone.2

34

* Because the question whether Scott has violated a moving buffer zone
depends on observers' ability to estimate distances, it is difficult for everyone,
including Scott and the district court, to know whether he has violated the
injunction.

35

If these problems can be eliminated or diminished by altering the terms of the

injunction in a manner that does not sacrifice the interests to be protected by the
injunction, then the injunction, as fashioned, burdens Scott's speech "more than
is necessary to serve the relevant governmental interests." Id. at 867. I believe
there are other approaches that would suitably protect the interests of the clients
and escorts while relieving Scott of the some of the problematic burdens.

36

The street in front of the clinic is lined by sidewalks 13" feet wide. The court
could divide those sidewalks into two strips; Scott could be required to remain

within a strip 5 feet wide (or whatever width was deemed appropriate by the
district court) running from the clinic entrance to the corner along the inner or
outer edge of the sidewalk. The clients and escorts could use the other 8"-foot
strip, which Scott would not be permitted to enter, except to cross it. (The order
might, furthermore, forbid Scott from crossing the strip unless he is at a
designated crossing and/or at least twenty feet from a person entering or leaving
the clinic.) The demarcation line between the strips could be marked on the
sidewalk in paint or tape.3
37

I believe use of such a design would substantially diminish the problems

outlined above. Scott would be able, while engaging in advocacy, to walk
alongside the client at a reasonable proximity, but not so close as to allow him
to obstruct or to intimidate patients or escorts. Clients could maintain a
reasonable distance between themselves and Scott merely by staying in the
remote portion of their strip. Scott would not be forced to walk into the street,
or to follow behind or walk backwards ahead of the client. He would not be at
risk of violating the injunction while attempting to engage in protected
communication. Thus, if Scott were walking and talking with one client while
another protected person walked past going in the other direction, Scott would
be free to continue addressing the client at the same distance. Escorts would not
be able to force Scott to increase the distance between himself and the clients
by placing themselves between the two. Markings on the sidewalk could make
clear to all concerned, including the district judge, whether Scott was in
compliance or violation.4

38

Because I believe an injunction could adequately protect the interests of the

clients and personnel of the clinic without imposing on Scott the burdens and
uncertainties that result from moving buffer zones on the sidewalk fronting the
clinic, I conclude the injunction as drafted needlessly burdens his speech. I
would set aside the injunction in the light of the Supreme Court's Schenck
opinion and direct the district court to consider whether it is practicable to
revise the injunction using fixed lanes as suggested above. I therefore
respectfully dissent.

Notes:
1

The fact that the buffer zones only become operative after a client has told Scott
to "cease and desist" does little to alleviate the concerns above. The videotape
evidence suggests that the great majority of clients and escorts promptly tell
Scott to "cease and desist."

With respect to the "cease and desist" provision, the majority asserts that
"Schenck recognized that a 'cease and desist' limitation like the one imposed in
this case was an effort 'to enhance [protestors'] speech rights and . . . must be
assessed in that light.'" Maj. Op. at 12 (quoting Schenck, 117 S. Ct. at 870). In
my view, the quoted passage of Schenck does not support the majority's result.
The Supreme Court made the quoted statement in the course of upholding a
fixed buffer zone that contained an exception for two "sidewalk counselors"
who could approach a person entering or exiting the clinic, provided they
retreated upon request. See Schenck, 117 S. Ct. at 861 n.3, 870. With respect to
the "cease and desist" requirement, the Court stated, "[w]e doubt that the
District Court's reason for including that provision-'to protect the right of the
people approaching and entering the facilities to be left alone'-accurately
reflects our First Amendment jurisprudence in this area." Id. at 870. The Court
noted, however, that the district court would have been justified in barring all
sidewalk counseling within the fixed buffer zone. See id. at 868 n.11, 870. It
was in view of an impermeable buffer zone's reasonableness that the Court
noted that "the entire exception for sidewalk counselors was an effort to
enhance petitioners' speech rights, and the 'cease and desist' limitation must be
assessed in that light." Id. at 870 (citations and internal quotations omitted).
Thus, it was the "exception for sidewalk counselors," not the "cease and desist"
provision, that Schenck recognized as an "effort to enhance petitioners' speech
rights."
In my view, the quoted passage of Schenck means only that an otherwise
constitutional buffer zone does not become unconstitutional because it offers an
exception for certain protestors who are subject to a dubious "cease and desist"
limitation. That proposition is not relevant to this case, because the cease-anddesist provision is not a limitation on an exception to a valid buffer zone. In the
majority opinion, the quoted passage seems to stand for the very different
proposition that an otherwise dubious zone becomes constitutional if the zone
applies only when a person requests that a protestor not approach. That
assertion is at best unsupported by Schenck.
2

The considerations about leafleting and speaking in a normal conversational

tone may be less important in this case than they were in Schenck. This order
enjoins only a single protestor who (1) has resorted to intimidation and
obstruction of clinic patients and staff; (2) has not, as far as the record reveals,
communicated through leafleting; and (3) seems to prefer to shout, rather than
speaking in a normal conversational voice.

If the district court considered appropriate to permit Scott to come closer to a

client or escort to allow him to offer a leaflet, it could add a peninsula at a fixed

location, extending Scott's strip slightly into the prohibited space. At that point
alone, the corridor from which the protestor is excluded would be reduced to a
4 or 5 foot width, so that he would have an opportunity at that spot to proffer a
leaflet when the client passed at a somewhat closer range.
4

I recognize that the parking lot presents a more complicated circumstance that
may justify retention of the moving buffer zones. While the use of moving
zones in the parking lot would still present difficulties for Scott, this is not
necessarily inappropriate. Unlike a public sidewalk, a parking lot is not a
"prototypical example of a traditional public forum." Id. at 867. Furthermore,
the injunction might be modified to state that Scott does not violate it if, while
he is engaging in lawful communication with one person, he enters the buffer
zone surrounding another person who he is making no effort to communicate
with or obstruct. The Supreme Court has not stated that moving buffer zones
are never permissible, see id., and subjecting Scott to their disadvantages only
in the parking lot would not seriously undermine his opportunity for speech.
Alternatively, the court might approach the parking lot in a similar manner to
my suggestion for the sidewalk - that is, by drawing lanes within which Scott
must remain - or by excluding him from the parking lot altogether.